DANNY NADAL A/K/A DANNY TORRES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Danny Nadal appeals the revocation of his probation. The appellate court reversed the revocation order because the trial court convicted him of grand theft of a firearm—a charge not alleged in the violation affidavit—based solely on evidence of firearm possession, and because the written order did not conform to the trial court's oral pronouncements on alternative grounds.
The revocation order cannot be sustained because: (1) the trial court improperly found the defendant guilty of grand theft of a firearm, a charge not supported by evidence and not alleged in the affidavit; (2) the written order's finding regarding failure to report did not conform to the trial court's oral pronouncement that it would not revoke on that ground; and (3) the failure to pay supervision costs was never reached by the trial court and lacked evidentiary support in the record.
[1] A probation revocation order cannot be sustained on a theory not alleged in the affidavit of violation of probation.
[2] It is fundamental error to convict or revoke probation based on a crime not charged in the affidavit of violation.
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Join FLexlaw to unlock all legal intelligence“It is, however, fundamental error to convict on a crime not charged.”
Establishes the core legal principle that the trial court erred by finding the defendant guilty of grand theft when that charge was not alleged in the probation violation affidavit.
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Join FLexlaw to unlock all legal intelligenceNadal, a convicted felon, was found in possession of a firearm. The probation violation affidavit charged him with grand theft of a firearm, but the e…
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PER CURIAM.
Danny Nadal appeals an order revoking his probation. We conclude that the order cannot be sustained on the present record and reverse it. This is, however, without prejudice to further proceedings in the trial court.
The evidence at the hearing showed that the defendant had been in possession of a firearm. It is evident that the trial court revoked his probation on the theory that as a convicted felon, it was illegal for the defendant to possess a firearm. See § 790.23, Florida Statutes (2002).
However, the affidavit of violation of probation did not make this charge. The affidavit charged that the defendant had committed the offense of grand theft of a firearm. At the revocation hearing, there was no evidence that the defendant stole the firearm, only that he possessed it. We therefore must reverse the finding that the defendant committed the offense of grand theft of a firearm. See Butler v. State, 450 So. 2d 1283, 1285 (Fla. 2d DCA 1984); Hodges v. State, 370 So. 2d 78, 79 (Fla. 2d DCA 1979); Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977).
We do not fault the trial court for this because neither party called this issue to the attention of the trial judge. It is, however, fundamental error to convict on a crime not charged. See Braggs v. State, 789 So. 2d 1151, 1154 (Fla. 3d DCA 2001). On remand the State is free to seek revocation of the defendant’s probation on the correct charge. Hodges, 370 So. 2d at 79 n. 1.
The State seeks to defend the revocation order on an alternative ground: that the written order found the defendant guilty of failure to timely report to the probation officer on one occasion. On this count, however, the trial court’s oral pronouncement was that the court would not revoke the probation for this violation. Thus, the written order does not conform to the oral pronouncement.
The State relies on another alternative ground: a ruling in the written revocation order that the defendant had failed to pay the costs of supervision. The transcript indicates, however, that the trial court never reached this issue, having determined to revoke the probation on the basis of the firearm charge. Further, there was no oral testimony on this issue and the written documentation introduced into evidence, on which the State relies, cannot be located by the clerk of the court. We thus reverse this part of the order, but without prejudice to the State to renew this charge at a new revocation hearing and present evidence on it.
For the stated reasons, the revocation order is reversed and the cause remanded for further proceedings consistent herewith.
Cases With Similar Vibessemantic neighbors from the corpus
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Johnson v. State, 899 So. 2d 436 (Fla. 4th DCA 2005)…ct. Consequently, we find that the trial court erred by revoking probation under these circumstances. However, the State is free to amend the affidavit on remand and seek revocation of the defendant’s probation on the correct charge. Nadal v. State, 855 So. 2d 257, 258 (Fla. 3d DCA 2003). Should the trial court again revoke Johnson’s probation, it should file a written order revoking her probation specifying the violations and the findings of fact in support of that ruling. See Watts v. State, 688 So. 2d 1018…
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Llerena v. State, 139 So. 3d 454 (Fla. 3d DCA 2014)…aine. Although the amended affidavit of violation of probation alleged conspiracy to traffic in cocaine, it failed to allege the additional offense of trafficking in cocaine, which therefore could not serve as a basis for revocation. Nadal v. State, 855 So. 2d 257 (Fla. 3d DCA 2003); Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977). . Appellant does not challenge any other aspect of the violation hearing or the sufficiency of the evidence regarding the violation. Neither does he challenge the sentence impose…
Authorities Cited
- Butler v. State, 450 So. 2d 1283 (Fla. 2d DCA 1984)
- Mack v. State, 342 So. 2d 562 (Fla. 2d DCA 1977)
- Braggs v. State, 789 So. 2d 1151 (Fla. 3d DCA 2001)
- Hodges v. State, 370 So. 2d 78 (Fla. 2d DCA 1979)